Director of Public Prosecutions v Barrow (a pseudonym)
[2025] VCC 163
•21 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OWEN BARROW (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August, 27 November, 20 December and 4 February 2025 | |
DATE OF SENTENCE: | 21 February 2025 | |
CASE MAY BE CITED AS: | DPP v Barrow (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 163 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence
Catchwords: Drug and Alcohol Treatment Order - Possess firearm and firearm related items – Knowingly deal with proceeds of crime, trafficking in a commercial quantify of a drug of dependence - Summary Offences – possess prohibited weapon – driving whilst suspended
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Hermann [2021] VSCA 160, Azzopardi v The Queen (2011) 35 VR 43, Bugmy v The Queen [2013] HCA 37, Akoka v The Queen [2017] VSCA 217
Sentence: Drug and Alcohol Treatment Order with a custodial term of three years and 11 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Stephanides | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | Stojne Slaveski |
HER HONOUR:
1Owen Barrow[1] on 15 August 2024 you appeared before me at a determination hearing in the Drug and Alcohol Treatment Court in relation to two indictments.
[1] A pseudonym.
2Indictment No. N11045581 contains six charges including possess firearm and firearm related items contrary to firearm prohibition order, traffic 1,4-Butenadiol, knowingly deal with proceeds of crime, trafficking in a commercial quantity of a drug of dependence, that was methylamphetamine, handling stolen goods and theft of a motor vehicle. Two related summary offences of possess prohibited weapon and drive whilst suspended were uplifted by consent.
3Indictment No. P12147753 contains three charges including possess firearm contrary to firearm prohibition order, possess firearm related items contrary to firearm prohibition order, and possess a drug of dependence.
4You were arraigned on each indictment, pleaded guilty to each of the charges on the indictments and the related summary offences. You admitted your prior criminal history. A summary of prosecution opening was tendered that detailed the agreed factual basis of each set of charges and what follows now is a summary of the offending circumstances.
Circumstances of offending , Indictment N11045581
5On 21 December 2021, the Chief Commissioner for Police made a firearm prohibition order (the FPO) against you. This was served on you and it remains in force until 21 December 2031. The firearm prohibition order prohibited you from acquiring, possessing carrying or using a firearm or firearm related item.
6On 25 May 2022 you were living at an apartment in Oakleigh. At 12:27 am, police observed you leave your apartment complex and approach a Didi ride-share vehicle parked out the front. You placed a plastic bag inside the front passenger footwell and returned to the apartment complex. The vehicle drove off. Approximately 10 minutes later police intercepted the vehicle and spoke to the driver. The driver confirmed he worked for DiDi and that he was in the process of delivering a package to an address in Moonee Ponds. The police searched the vehicle. In the front passenger-side footwell they found a white and green plastic Woolworths bag. Inside the bag were four sealed packets with 'Easy Mac' branding and a 'Food Saver' sealing machine capable of resealing plastic bags.
7Police noticed that one of the Easy Mac packets appeared to have been opened and resealed. The packet was opened and inside were two zip-lock bags containing a white crystalline substance. Later analysis confirmed this substance to be 41.7 grams of methylamphetamine. (Part of Charge 4 the commercial quantity - trafficking).
8Later that day police attended your apartment and executed search warrants issued under the Drugs, Poisons and Controlled Substances Act 1981 and the Firearms Act 1996. Police announced their presence and demanded you open the door. Despite numerous requests, there was no answer. The police forced entry. You were found inside and you were arrested. At this time you dropped a key fob with a Mazda logo.
9The police searched your apartment and located, photographed and seized: a brown-handled double-edged hunting knife; (Possess prohibited weapon); keys to your Nissan 350Z; a black Samsung Galaxy; a white iPhone; a single Victorian registration plate 'MALKKA'; a 'Lidix' brand currency counter; electronic scales; an eight-pack box of Easy Mac packets with three packets inside - this matched the Easy Mac packets located in the car - and at least 14 boxes of zip-lock bags.
10Enquiries with VicRoads determined the registration plate 'MALKKA' belonged to Christopher Kostanas and had been reported stolen. (Handle stolen goods charge).
11A search of your vehicle occurred and police located, photographed and seized: eight bottles of liquid later analysed to be 921.3 grams of 1,4-butanediol; (Trafficking Simpliciter). There was a round of .22 ammunition; five zip-lock bags containing white crystalline substance which later analysis confirmed to be a combined 506 grams of methylamphetamine (Part of the trafficking in a commercial quantity); a single-barrel 12-guage home-made top break shotgun with a silver handle, wrapped in a white towel; three .38 calibre ammunition; a series of .22 calibre ammunition wrapped in red tape; a white plastic shopping bag containing $107,570 worth of cash; two registration plates numbered 1PL7GM; one registration plate numbered 1GA3QG; and two registration plates numbered BCY564; a black Samsung mobile phone; a key with a BMW logo; a wallet containing cards in the name of Remi Toru (possession of firearm, firearm-related items, knowingly deal in proceeds of crime - cash - and handling stolen goods).
12Parked immediately beside your vehicle was a Mazda CX-9. Using the key fob you dropped during your arrest police were able to open the Mazda. Inside the car police located, photographed and seized $500 in cash.
13After the search at approximately 2:15 pm, you were taken to the police station. You were interviewed by police and answered 'no comment' to most questions. However, you did indicate that you had lived at the apartment for about nine to 10 months and paid $550 per week rent; you denied ordering the DiDi; you claimed to be asleep and did not hear the police when they knocked; and you agreed the fob key to the Mazda CX-9 was found in your apartment. You consented to the provision of a DNA buccal swab.
14Further investigations revealed the Mazda CX-9 belonged to Steven White and had been reported stolen on 27 April 2022. Your fingerprints were located in various locations on the inside and outside of the vehicle. CCTV footage from the apartment complex showed you driving the vehicle. (Theft of motor vehicle) Enquiries with VicRoads revealed that you were the holder of a P1 probationary driver licence which had been suspended for six months on 4 March 2022 by the Magistrates Court (Related summary charge of driving whilst suspended).
15Police also obtained closed circuit television (CCTV) footage from the building manager in Oakleigh. The CCTV footage shows your activity in and around the Nissan 350Z and Mazda CX-9 through 24 May and 25 May 2022.
16The prosecution relies on the events depicted in the CCTV footage and the discovery of drugs, firearms, cash and other paraphernalia in the Nissan 350Z and the Mazda CX-9 as supporting the inference that you were engaged in a trafficking enterprise on the day of the offending.
17Analysis of the substances determined: The total net quantity of substance mixed with methylamphetamine weighed 547.7 grams, with the purity of each sample ranging between 82 to 86 per cent. The approximate quantity of pure drugs was estimated to be less than 500 grams. This quantity exceeds the commercial quantity threshold for methylamphetamine (mixture). The total net quantity of 1,4- butanediol weighed 921.3 grams. This quantity exceeds the trafficable quantity threshold for that substance.
18The firearm and ammunition found inside your Nissan 350Z were analysed and the firearm was determined to be a 12-guage homemade top-break shotgun. At the time of analysis, the firing pin was misaligned which meant that the firearm could not be discharged. However, with modification to the firing pin the shotgun was capable of discharge. DNA samples determined you were 100 billion times more likely to be a contributor to the mixed DNA profile detected on the firearm.
Circumstances of offending, Indictment No. P12147753
19On 9 October 2023 a guest staying in Room 124 at the Novotel Hotel, Glen Waverley, reported to hotel staff that the interconnecting door to his room was unlocked and there was a firearm concealed behind the back foam between the doors. The hotel manager phoned Triple 0 and reported the incident and provided police your details as the occupant of the room next door.
20At about 10.40 am police entered Century City Walk and observed you and your co-offender, a Ms Sharp, [2] walking toward the exit. The police stopped and questioned you both. Ms Nicolls gave police a small zip-lock bag containing methylamphetamine. You were also questioned. This was recorded on body worn camera. Whilst police were speaking to you, you dropped a small zip-lock bag under a toy machine near where you were standing. This was not detected by police at the time. Approximately one hour later a security guard found the zip-lock bag that you had dropped. He gave the bag to the police and it was found to contain five grams of methylamphetamine (Possess drug of dependence)
[2] A pseudonym.
21A manager from the Novotel supplied police CCTV footage. Police viewed the CCTV which showed that at approximately 9.40 am the same day both you and Ms Sharp left hotel room No. 122. You appeared to have an injury to your left arm and Ms Sharp was carrying a large, chequered bag. You both got into the lift and got out on the basement level. You entered a doorway to the change rooms and pool area. There is no CCTV coverage of this area. At 9.45 am you both exit the pool area without the chequered bag.
22At 11.15 am police searched the area. The chequered bag depicted in the CCTV was located concealed in the roof cavity of the change room hallway that could be accessed via a manhole.
23The bag contained a Harrington and Richardson 0.25 Calibre fully operable and loaded handgun and a US Carbine 0.30 Calibre Longarm without a magazine. (possess firearm contrary to a firearm prohibition order), I note this is a rolled-up charge dealing with both of those firearms.
24The police photographed the firearms. The Novotel Hotel granted police access to Room 122 where you and Ms Sharp had been staying. No personal belongings were located. Both you and Ms Sharp had been arrested and taken to Oakleigh police station for interview.
25Upon arrival at the police station you informed police you were suffering from a severe infection in your left forearm from a previous incident. You were assessed by Ambulance Victoria and hospitalisation was deemed necessary. You were taken to the Monash Medical Centre for admission under police guard without being interviewed.
26Ms Sharp was interviewed and made admissions to police. She stated she was asked by you to carry the bag but was not aware of its contents. She also confirmed that following the concealment of the chequered bag, you both walked to the Monash Council building next door where she believed a further firearm was concealed in the disabled toilets manhole.
27Ms Sharp was charged with possession of the firearms and methylamphetamine on her person and was released on bail.
28Through the evening you remained unfit for interview and the following day you were transported under police guard to Hospital for surgery. At the time of the offending you were on County Court bail.
29Police attended the Monash Council building and located a loaded .30 calibre rifle magazine in the manhole wrapped in a black disposable glove. The magazine was photographed and seized. (Charge 2 – possess firearm related items contrary to a firearm prohibition order)
30CCTV supplied by the council showed both you and Ms Sharp entering the disabled toilets in Monash City Council building that same day.
Personal Circumstances
31Mr Barrow, you were born in May 2002 and you are now 22 years old. At the time of the offending in May 2022 you had just had your 20th birthday, it was about four days after. At the time of the offending in October 2023 you were 21 years old.
32You are the third of four children, having two older brothers and a younger sister. You were born in Mulgrave and grew up in Dandenong and Noble Park. Both your mother and father were plagued by drug addiction and mental illness. You were witness to their intravenous drug use, to suicide attempts by each of them, and to considerable domestic violence. Your parents constantly argued and fought with your father being particularly violent at times. You were the victim of several forms of abuse from a young age.
33Your parents separated when you were aged eight. You generally remained in your mother’s care, but also spent time with your father. The situation with your mother was unstable although she had support from her parents and at times you had a consistent house. Her mental health and drug use continued to be problematic, and she regularly engaged in short-term relationships with other drug users who were often abusive. The periods you spent with your father were similarly unstable. He was largely transient, often reliant on emergency accommodation in rooming houses. Neither of your parents worked consistently, thus your family lived in poverty. Further, there was little structure to your activities and no consistent discipline. Sadly, your early years and indeed much of your life has been marred by dysfunction, violence, abuse and neglect.
34Currently, you have no contact with your father and only limited contact with your mother. You are estranged from one brother who uses drugs, however, you enjoy a close and supportive relationship with your sister and other brother, who appear to be pro-social and abstinent.
35In terms of education, you completed primary school and attended secondary school until part way through Year 11. You acquired functional literacy and numeracy skills but felt alienated and isolated from other students who seemed to have stable and happy lives. You struggled with some aspects of schooling most likely brought about by your irregular and poor attendance. Socially, you were subjected to bullying and at times experienced behavioural difficulties. Some teaching staff were aware of your difficult homelife and made attempts to assist you with learning and to provide a sense of community and stability. Overall school did not assist you to deal with your problems.
36Whilst at school you worked at a fast-food restaurant. Upon leaving school you commenced an automotive mechanic apprenticeship which you attended haphazardly until discontinuing after approximately two years due to the effects of your substance addiction. You have also undertaken a Certificate III in personal training and have obtained your 'white card' for construction work.
37You have had two significant relationships. Your previous partner Carla was a heavy drug user and a terrible influence in your life. You began a relationship with your current partner Christina in October 2021. Christina does not engage in substance use, she has been actively supporting you and has demonstrated this by her attendance at court. Despite the fact that your relationship is generally positive, your drug use has been a significant source of problems. You have been on the verge of separation many times.
38In terms of your drug use, you commenced the use of alcohol aged 12 with older peers who were known to your father, and in your early teens you were abused by those people. Alcohol became a form of emotional coping and was your substance of choice in your early teens.
39You began using cannabis with one of your brothers when you were approximately 14 years old. Your use quickly escalated. Cannabis replaced alcohol as your primary substance of choice. By the time you were 17 you were smoking one to two grams per day. Your use reduced after you started using other substances and you have not used cannabis regularly in the past two to three years. Historically, you used cannabis to relax and as a sleeping aid.
40By the age of 15 you began to experiment with methylamphetamine, again being introduced to this substance by your brother. From the start you used this substance intravenously. You took risks by sharing needles and you engaged in trafficking and sexual activities to finance your use. At your peak you were using up to two grams of ice a day. You continued to use ice up to your remand for the current matters before the court.
41Your mother introduced you to heroin at age 16. Your use was short-lived, and you took heroin orally and not intravenously. During your custodial terms, you have used unprescribed buprenorphine to manage your cravings.
42GHB has also been a problematic substance. You started using GHB when you were 16 to 17 years old, and this substance gradually replaced alcohol as your primary substance of choice to counteract your ice use. You used 200 millilitres or more on most days since the age of 18 and disclosed multiple episodes of overdose that required medical attention.
43At the age of 19, in December 2021, you first appeared in Dandenong Magistrates Court for possession of drugs and associated offending including the possession of firearms. You were sentenced to a two-year CCO. Only days after this court appearance you offended again and were remanded in custody. You were dealt with for firearms and dishonesty offences. You were sentenced to six months' gaol. You appealed this sentence and in April 2022 your appeal was allowed and you were sentenced to 106 days, time served, and a 12 month therapeutic CCO. Shortly after this, on 12 April 2022, contravention proceedings occurred in relation to the original two-year CCO. The contravention was found proven and you were ordered to again undertake the CCO and perform 150 hours of unpaid community work.
44You had experienced your first period of incarceration and there were two CCOs from both the Magistrates Court and the County Court. You were at liberty for only 43 days before being charged in May 2022. You were remanded in custody until being granted bail. Your application was adjourned part-heard on two occasions. You were released with conditions that you comply with the AFTR intensive outpatient program. In addition, you attended Corrections and undertook the 150 hours of unpaid community work and attended for supervision. Your attendance at AFTR satisfied the therapeutic conditions that had been imposed.
45Reports from AFTR speak of your motivation and dedication to rehabilitation and abstinence. You received treatment for mental health issues and drug dependence. During treatment you struggled with short term memory problems and at times struggled to retain learning. You were consistently reviewed by the Magistrate who granted your bail until you were committed to this court on 16 December 2022.
46Also, in December 2022, you gained labouring employment. You performed well in the community at this time. By February 2023 you were promoted to supervisor at your workplace, and you continued to engage with AFTR and Corrections until around April 2023.
47A plea hearing was listed on 8 May 2023, two weeks before your 21st birthday. You applied to adjourn this hearing to pursue Drug Court and in doing so gave up the opportunity to be dealt with as a young offender, restricting the dispositions available to a sentencing court.
48On 18 September 2023 you were assessed by Patrick Newton. It was apparent to Mr Newton that you were substance affected at the time of this assessment, and I think you later admitted that although you did not at the time.
49
Within a month you had re-offended. In October 2023 you were arrested for charges of drug possession and the possession of firearms. You were returned to custody. This matter proceeded through the Magistrates Court and on 8 February 2024 you were committed to this court by way of straight hand-up brief. Your two matters were effectively consolidated and His Honour Judge Higham made orders for Drug Court assessment reports in May 2024. These were completed by late June and although you were assessed as suitable for a DATO, or a Drug and Alcohol Treatment Order, both assessors recommended that you undertake psychiatric assessment. Accordingly, you were then assessed by
Associate Professor Andrew Carroll in August 2024.
50On 15 August 2024 your determination hearing commenced. Mr Farrington urged me to place you on a DATO or alternatively defer sentence and bail you to an inpatient rehabilitation facility. Your determination hearing was adjourned until a bed became available at Odyssey House. On 9 October 2024, I granted bail for you to reside at Odyssey House. I set a review date of 10 December 2024. You were released the following day.
51On 19 November you were discharged from Odyssey House. You returned to Court for a bail variation application on 27 November 2024. In the intervening period you submitted five urine screens, all of which were clear. I varied bail for you to reside at Harmony House to undertake their 90-day intensive inpatient drug rehabilitation program. I reviewed you on 20 December and most recently on 4 February 2025. You have remained at Harmony House and a letter from Carlo La Marchesina, who is a director of that program, describes your dedication and progress. You have remained clear of drugs and have engaged in all aspects of the program. You are due to conclude the 90-day program on 27 February 2025.
Nature and gravity of offending
52It is apparent from the very nature of the charges before the court, the circumstances in which they were committed, and the chronology I have just detailed, that your offending is very serious. You have trafficked a very substantial commercial quantity of methylamphetamine, trafficked 1,4-Butanediol, dealt with a considerable amount of money knowing it to be proceeds of crime and you have possessed several weapons, at least two of which, on my count, were loaded. You have offended whilst on two community correction orders and the October 2023 offending occurred while you were on bail for the May 2022 offending.
53The offence of trafficking methylamphetamine in a commercial quantity alone is inherently serious. Not only is it punishable by a maximum term of imprisonment of 25 years, but Parliament has designated it as a Category 2 offence. Section 5(2H) of the Sentencing Act provides that the court must impose a custodial sentence unless at least one of the circumstances set out in sub-ss(a) to (e) can be established.[3] The consequence of this categorisation does not interrupt your eligibility for a DATO, however, it does reflect Parliament's very real concern that people who trade in commercial quantities of drugs should receive condign punishment almost invariably involving significant terms of imprisonment.
[3] Sentencing Act 1991 (Vic) s5(2H).
54I accept the submissions made by the prosecutor, Ms Stephanides, in relation to the firearm offences. Your possession of multiple firearms, two of which were loaded, whilst in the grips of significant methylamphetamine and GHB addiction, is objectively serious and could have been a deadly combination. Further, I accept that the seriousness of your offending was further elevated because of your relevant prior convictions, your breach of a firearms prohibition order, which I understand to be part of the offence, and two CCOs and bail.
55Mr Barrow, on any view, your offending is extremely grave.
56Against this your counsel Mr Farrington in a comprehensive and persuasive plea, was able to call in aid powerful mitigatory factors on your behalf. These include the following.
Plea of guilty
57First, you entered early pleas as a result of active negotiations undertaken to resolve the matters. In circumstances where both matters proceeded by way of straight hand-up brief, no witnesses were cross-examined, the court has been spared the time and expense of complicated trials and a concession by the crown that your pleas should be accepted as pleas of guilty entered at an early opportunity, I find that your pleas of guilty have strong utilitarian value. Further, I find that you have demonstrated a desire to facilitate the course of justice, and your pleas are evidence of your remorse. And I note that you also provided a letter to the court which was also demonstrative of remorse. I will allow a significant discount for your pleas of guilty.
Youth
58Second is your young age, you were 20 and 21 years old respectively in relation to the offending before the court and you are now 22 and fall to be sentenced as a 'youthful offender'.
59The Court of Appeal in Azzopardi v The Queen summarised the three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration.[4]
'Firstly, young offenders are often more prone to impulsive and ill-considered decision making. They may lack the insight and self-control of adults and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, courts recognise the potential for rehabilitation in young people because they are at an earlier stage in their mental and emotional development. They therefore may be more open to positive change than adults with entrenched anti-social behaviours. Further, the community has an interest in such rehabilitation as in the long term it is protective from the impacts of further offending.
Thirdly, the incarceration of young offenders is more likely to hinder rather than improve their prospects of rehabilitation. Young people in custody are likely to be exposed to the corrupting influences which can entrench criminal and anti-social tendencies. These effects have detrimental flow-on consequences in the community.'
[4]Azzopardi v The Queen (2011) 35 VR 43 [34] - [36].
60In situations of particularly grave offending or offender characteristics, considerations relating to youth may give way to varying degrees to considerations such as general and specific deterrence. Though your offending is serious, I do not consider yours to be such a case where I am required to significantly displace youth in favour of other factors. This is in light of your relatively limited, although relevant prior criminal history, your disadvantaged background, your poor mental health and immaturity. I find that your age and circumstances at the time of your offending reduce your level of moral culpability and reduce the weight that the court must put on general deterrence.
Mental health - Verdins
61Third, is your poor mental health. You have been assessed by a number of mental health professionals. A report from Mathew Staios, neuropsychologist, dated 6 September 2022, and a psychological assessment report from Clinical and Forensic Psychologist Patrick Newton dated 27 February 2024, were tendered on your plea. Further, a psychiatric report from Associate Professor Andrew Carroll was sought and provided by the Drug Court clinical assessors.
62Mathew Staios opined that the dysfunction of your parental figures has likely led to a normalisation of dysfunctional behaviour and the integration of maladaptive coping mechanisms in your personality structure during crucial periods in your childhood. He assessed you to have a deteriorated psychological state in custody with ongoing symptoms of PTSD and adjustment disorder. It was the view of Mr Staios that your mental health was likely to further deteriorate in custody given your age and psychological vulnerabilities, without appropriate measures to manage risk.
63Mr Newton noted that you have a long-standing history of suicidal ideation and have repeatedly engaged in self-harming behaviours both accidentally and deliberately which have resulted in injury. Further, Mr Newton noted that you described and manifested noteworthy depressive symptoms. These include prominent feelings of sadness, a broader sense of emotional depletion, a persisting lack of energy and deep-seated pessimism. You have been prescribed antidepressants to treat the symptoms in the past, but do not find medication effective. Mr Newton went on to state that he would diagnose you as suffering from post-traumatic stress disorder (PTSD) in partial remission by DSM-5 criteria. Mr Newton opined that your pre-existing PTSD and depression have both resulted in increased hardship for you during your period in remand:
'Not only has his reported exposure to violence been directly distressing and rekindled traumatic memories of earlier physical abuse, but his belief that some of the prisoners on his unit have been charged with sexual offending has also rekindled upsetting recollections and distress. As a result, and as described in paragraph 46, Mr Barrow is experiencing a greater than usual level of anxiety whilst on remand'.
64Your counsel submitted that the sentence imposed ought to be moderated consistent with Limb 5 of Verdins. I accept the opinion of Mr Newton and find on balance that this limb of Verdins is enlivened in your case and I will moderate your sentence accordingly.
65Further, I have had regard to the report of Associate Professor Andrew Carroll. He opined that you appear to have a strong genetic loading for addiction problems; that your childhood and adolescence have been blighted by a range of very serious adversity including trauma. Notwithstanding your interrupted education you appeared to be of above average intelligence with good potential for vocational functioning over the longer term. It is difficult for him to determine if your copious substance misuse is secondary to 'self-medication' for trauma related symptoms or driven by modelling of substance use by adults that you were exposed to during your formative years. He concurred with the assessment of Patrick Newton that you suffer with PTSD in partial remission. Further, it was his view that you were at a major crossroads of your life. He considers you have great potential moving forward but this will be jeopardised if you relapse into substance use.
66Although your psychological functioning does not enliven the other limbs of Verdins, I have taken the reports and opinions of Mr Staios, Mr Newton and Associate Professor Carroll into account, they are all relevant to the sentencing task and I have taken them into account in a general way.
Bugmy
67Next, Mr Farrington submitted that the principles enunciated in the case of Bugmy were enlivened in your case. In making an assessment of your moral culpability or degree of blameworthiness to be attached to you for your offending, it is necessary to closely examine your personal circumstances and background and an exploration of factors which may explain the offending conduct. To the extent that the offending is due to factors beyond your control, the harshness of moral judgement is likely to be moderated.[5]
[5] R v Hermann [2021] VSCA 160 [14].
68An examination of your personal history reveals that you suffered significant instability, childhood neglect and deprivation. You were exposed to mental illness, domestic violence, substance abuse, and were the victim of various assaults for many of your formative years. In my view Bugmy has application in your case. That is the more general expression that your experiences; [6]
Mitigate the sentence because [your] moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
[6] Bugmy v The Queen [2013] HCA 37 [40].
69And the more specific expression that;[7]
'[your] exposure to extreme violence and alcohol abuse may explain [your] recourse to [drug use and trafficking] such that [your] moral culpability or the inability to control that impulse may be substantially reduced. However, the inability to control [your] responses may increase the importance of protecting the community from [you].'
[7] Ibid at [44].
70Further, I consider the following observation of the High Court in Bugmy has relevance in your case, and that is that;[8]
'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time, and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.'
[8] Ibid at [43]-[44].
71I accept that your childhood experiences of adversity give context to your prior history.
Rehabilitation
72Your counsel submitted that you demonstrate insight into your drug dependency, the correlation between your dependency and criminality, remorse for your offending, and a genuine motivation to address your drug dependency and rehabilitation. I accept that you have demonstrated this to be the case.
73Ms Stephanides asked the court to have regard to the opinion of Mr Newton that your prospects for rehabilitation are guarded. In his psychological assessment report Mr Newton appreciated that your treatment course would be complex and difficult, long-term, diligent engagement will be needed if you are to achieve sustained change. You are afflicted by significant emotional problems, your insight into drug use is superficial, you have continued to engage in high-risk substance use even in prison, and you have been assessed as being at elevated risk for relapse. Further, your maladaptive personality traits both intensify your other problems and complicate your treatment.
74Notwithstanding, Mr Newton acknowledged that you have been able to maintain abstinence when provided appropriate structure and support – you were able to achieve abstinence for a period of 10 months. With a supportive foundation you were able to achieve in your work and relationships and to show some potential for recovery and renewal. While your relapse subsequently derailed this progress, if such structure and support could be restored, there would be at least a prospect that you might overcome your challenges and return to productive life in the community.
75Mr Newton opined while your rehabilitative prospects are guarded, in the context of structure and support, you are more likely to achieve this goal. I accept the findings of Mr Newton in this regard.
76Mr Barrow, your journey through the criminal justice system has been punctuated by several attempts at reform. You engaged in the AFTR program, you completed the condition requirements of the CCOs, including 150 hours of unpaid community work, you were an inpatient at Odyssey House for five weeks and you have resided at and participated in the inpatient program at Harmony House for nearly three months. You have made impressive progress whilst at Harmony House and engaged with a drug and alcohol treatment program. You have demonstrated full compliance with all facets of the program. You have actively participate in all scheduled activities and have engaged positively with both staff and fellow participants. You have expressed to the clinical team at Harmony House that you are achieving significant results and feel hopeful about your recovery journey.
77Overall, I consider you have consistently and courageously fought to overcome your addiction but that you will require the extensive support that a DATO can provide to continue your journey towards reform.
Akoka time
78Lastly, I take into account the four months that you have spent engaged in inpatient treatment. Such treatment necessarily had restrictive and punitive aspects in addition to a rehabilitative focus. Although this time does not represent or equate with pre-sentence detention, in my view it is time that should be taken into account as part of the instinctive synthesis of sentencing, and also as a means to encourage you and others in your position to participate in such programs.[9]
[9] Akoka v The Queen [2017] VSCA 217.
Matters relevant to the Drug and Alcohol Treatment Court Determination Hearing
79I turn now to the matters relevant to the making of a drug and alcohol treatment order. The purposes of a DATO are to facilitate your rehabilitation, take account of your drug or alcohol dependency, to reduce the level of criminal activity associated with drug or alcohol dependency, and to reduce your health risks associated with drug or alcohol dependency.[10] Importantly, if I am considering making such an order, I must regard your rehabilitation and the protection of community from you, achieved through your rehabilitation, as having greater importance than the other sentencing purposes such as denunciation and general deterrence.
[10]Sentencing Act1991 (Vic) s18(1).
80On the balance of probabilities, I am satisfied that you are dependent on drugs or alcohol and that your dependency contributed to the commission of the offences now before me. Notwithstanding the gravity of your offending, having regard to the mitigatory matters to which I have referred, and the impact of s18(1) of the Sentencing Act,[11] I am satisfied that it would otherwise be appropriate to impose a sentence of imprisonment of no more than four years. Having regard to what is often referred to as the residual discretion, I am satisfied in all the circumstances that it is appropriate to make such an order.
[11] Ibid
81My decision to impose a drug and alcohol treatment order in your case has been informed by the assessment reports provided by the Drug and Alcohol Treatment Court clinical adviser and case manager. As I have said you have been assessed as suitable for a drug and alcohol treatment order.
82In your assessment with clinical advisor, Terence Sequeira, you expressed willingness and motivation to participate in treatment for your substance use. You advised that you wanted to stop using illicit substances and engaging with negative peers. At the time you indicated your willingness to explore residential treatment.
83Ms Griffin-Achmad, case manager, deemed that there were instances where you minimised your culpability for your offending, or your accountability seemed superficial. Despite this, Ms Griffin-Achmad noted your historic capacity to engage with community-based orders. You presented as highly motivated towards treatment and rehabilitation. Further, you have prosocial support offered by your partner and your brother, with whom you will be residing. Mr Farrington, I understand that to be the case, that he will be residing with his brother.
84MR FARRINGTON: That's right, Your Honour.
85HER HONOUR: Their support will help to provide you with stability, structure and routine, which should be conducive to your recovery. Ms Griffin-Achmad raised concerns with respect to your vulnerabilities relating to your young age, your history of being groomed and coerced into substance use and offending behaviour, your mental health challenges and your history of trauma.
86In his psychiatric report, Associate Professor Carroll agreed that residential rehabilitation would be beneficial to you. He further opined that you would benefit from long-term psychological treatment with a psychologist experienced in working with offenders. The focus of your treatment should be on basic distress tolerance and consolidating strategies for desistance from substances, particularly when triggered by encountering associates or by stress. He also recommended that at some point it would be appropriate to address your past traumas in relation to your difficult upbringing and abuse.
87Having considered the criteria for the making of a drug and alcohol treatment order set out in s18Z of the Sentencing Act,[12] and having carefully considered the nature and gravity of your offending, the reports of Mathew Staios, Patrick Newton and Associate Professor Andrew Carroll, the assessment reports from the clinical assessors, the letters from Mr La Marchesina, the written and oral submissions of both your counsel and the prosecution, your letter that you wrote to the court, I indicated at your further determination hearing on 4 February 2025 that I was satisfied that it was appropriate in all the circumstances to make a drug and alcohol treatment order in your case.
[12] Ibid s18Z.
Sentence to be imposed
88In relation to all charges, you are convicted and you are placed upon a Drug and Alcohol Treatment Order, and that order will commence today. You will be discharged or released from Harmony House, on 27 February, and you will be able to take up the program conditions at that point. In the meantime, you will have an orientation today and return to Harmony House. You will be accompanied to Drug Court House this morning by Krishna Jones who is in court, she is one of the Drug Court team.,
89A drug and alcohol treatment order has two parts: there is a treatment and supervision part and a custodial part. So the treatment and supervision part has two parts in itself, and these are as follows:
90So there are core conditions - these are that:
(a) You must not commit, whether in or outside of Victoria, another offence punishable by imprisonment during the time of the order;
(b) You must attend Drug Court when required to do so;
(c) You must report to the Melbourne Drug Court House within two clear working days after the order is imposed, and I think you are going to go straight there now;
(d) You must report to and accept visits from the members of the Drug Court;
(e) You must undergo treatment for alcohol and drug dependency as specified in the order or by the Drug Court;
(f) You must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) You are not to leave Victoria without the permission of the Drug Court; and
(h) You are to obey all lawful instructions and directions from the Drug Court team.
91So those core conditions will operate for 47 months, or until further order.
92The program conditions are as follows:
(a) You must comply with the individual treatment plan which is dated 21 February 2025;
(b) You must submit to drug and alcohol testing as directed;
(c) You must submit to detoxification or other treatments specified in the order as directed;
(d) You must attend vocational, education and employment programs as directed;
(e) You must submit to medical, psychiatric and psychological treatment as directed;
(f) You must reside at accommodation as directed by the Drug Court team;
(g) You are not to use a drug of dependence without lawful authorisation;
(h) You are to abstain from alcohol; and
(i) You are to do, or not do, anything else that the Drug Court considers necessary or appropriate concerning your drug and alcohol dependency and the personal factors that the Drug Court considers contributed to your criminal behaviour.
93These program conditions will operate for two years or until further order.
94The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a drug and alcohol treatment order, and it is a term of three years and 11 months, or 47 months, and it is made up as follows:
95So Charge 1, possession of a firearm contrary to a firearm prohibition order, you are sentenced to 18 months' imprisonment.
96In relation to Charge 2 which is trafficking the 1,4-Butenadiol, you are sentenced to nine months' imprisonment.
97Charge 3, knowingly deal with proceeds of crime, you are sentenced to nine months' imprisonment.
98In relation to trafficking in a commercial quantity of methylamphetamine, you are sentenced to two years and nine months' imprisonment, and that is the base sentence.
99In relation to handling stolen goods, you are sentenced to two months' imprisonment.
100Theft of a motor vehicle which is Charge 6, four months' imprisonment.
101The possession of the knife, one month imprisonment, and the driving whilst suspended, one month imprisonment.
102Now in relation to those terms I will order that four months on Charge 1, two months on Charge 2 and two months on Charge 3 are cumulative, and that is cumulative on the base sentence on Charge 4, two years nine months, and on my calculation that gives, for that indictment, a total effective sentence of three years and five months. So that is in relation to the CR-22 matter.
103In relation to the CR-24 matter:
104On Charge 1 you are sentenced to two years' imprisonment. I note that that is a rolled-up charge of possession of a firearm contrary to a firearm prohibition order.
105On Charge 2 you are sentenced to 15 months, that is the possession of the firearm-related items.
106And in relation to Charge 3, possession of five grams of methylamphetamine, I am satisfied that that was really possess for use and I am going to convict and discharge you in relation to that.
107In relation to Charge 1, the two years is the base sentence, and I will order that three months of the sentence on Charge 2 be served cumulatively.
108So for that indictment the total effective sentence is two years and three months.
109I order that six months of the sentence imposed on CR-24-00533 be served cumulatively on the sentence imposed on CR-22-02384, and that makes a total effective sentence of three years and 11 months.
110Further, I declare that you have served 503 days in custody by way of pre-sentence detention and this will be declared as time served and entered into the records of the court.
111Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty and been found guilty after trial I would have imposed a total effective sentence of five years and six months with a non-parole period of three years and 10 months.
112I will make the forfeiture orders that are sought by the crown.
113MR FARRINGTON: As the court pleases.
114MS STEPHANIDES: As Your Honour pleases.
115I wish you every success. Can I thank counsel very much, Mr Farrington, Ms Stephanides really thorough submissions, made my job so much easier, so thank you for that.
116MR FARRINGTON: As the court pleases.
117MS STEPHANIDES: As Your Honour pleases.
118HER HONOUR: And, yes, good luck. We'll adjourn the court.
119MR BARROW: Thank you, Your Honour.
- - -
0
5
0